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'Color-blind' 14th amendment not color-blind at all, professor says

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Education historian James Anderson says the 14th Amendment was not written to make the Constitution color-blind and race-neutral.

CHAMPAIGN, Ill. - It is the central argument in many recent desegregation and affirmative action lawsuits, including school cases now before the U.S. Supreme Court: The 14th Amendment was written to make the Constitution color-blind and race-neutral.

But was that the intent of the Congress that wrote it during the Reconstruction period that followed the Civil War?

Educational historian James Anderson says it wasn't. The Congress that framed the amendment, after months of debate in 1866, was not color-blind but profoundly color-conscious, says the University of Illinois professor. His conclusions are based on his own recent research on the congressional record from that period.

The same 14th Amendment that made citizens of newly freed African-Americans also denied citizenship to American Indians, through the inclusion of a key phrase, Anderson said. In the congressional debate, "there's as much discussion about the Indians and citizenship as there is about African-Americans and citizenship," he said.

Numerous attempts to add the phrase "without distinctions of race or color" were voted down decisively, Anderson said, along with any language that might require desegregated schools or restrict laws against interracial marriage.

And the only thing that may have prevented the children of Chinese immigrants from being written out of citizenship were their relatively small numbers at the time, he said.

The color-blind view of the amendment has caused courts, legislators and schools to see their hands as tied on key matters concerning race, Anderson said. After a thorough look at the legislative history, he thinks "we're not nearly as constrained as we think we are."

Anderson presented his research in a featured lecture at the recent annual meeting of the American Educational Research Association in Chicago. It also will appear in a book to be published next spring.

The color-blind view of the 14th Amendment has come about, Anderson said, in large part as a result of "the tendency to focus almost exclusively on the response of Congress to the plight of African-Americans" following the Civil War. From that perspective, he said, it is easy to see the language of the amendment as color-blind, a view he himself held prior to his research.

But that "narrow view of legislative history ... distorts the wide-ranging discussions of race, ethnicity and national origins that characterized the Reconstruction Congress," he said.

The emancipation of 4 million black slaves certainly precipitated the debate, Anderson said. "But once they opened a question about citizenship for African-Americans, they also opened a question about citizenship for everybody else."

Anderson said he was struck by just how much was being dealt with in these Reconstruction-era debates, which produced not only the 14th Amendment, but the 1866 Civil Rights Act, the 15th Amendment giving blacks the right to vote, the Naturalization Act of 1870, and other legislation concerning citizenship, rights and naturalization.

"American democracy is being reconstructed in 1866 in all of its facets - citizenship, equal rights, political rights, social rights - and everything that we think of today (in connection with those issues) is on the table ... it's all there," he said. "They were considering these big questions all together, all at the same time - same sentence, same paragraph, same moment, same hour."

Much of the color-consciousness of the Congress of that period arose from basic issues of power and politics, albeit mixed with significant discrimination and prejudice, Anderson said. In considering citizenship for American Indians, for example, the legislators were aware that Indians as citizens would outnumber whites in places such as Colorado, soon to be a state. Citizenship would also mean the Indians would have a right to firearms.

In considering Chinese immigrants and their children, the Congress envisioned a large potential influx of Chinese immigrants to the west coast, and feared they would dominate the region.

"They used color in both directions: They used it to give benefits to some people and they used it to harm other people," Anderson said. One twist is that the Naturalization Act of 1870 opened the doors to everyone of African descent, which paved the way for a large influx of black Caribbean immigrants in the late 1800s, he said.

Rather than seeing the 14th Amendment and related legislation of the time as color-blind or race-neutral, Anderson said the historical record shows "they did not settle these questions, and it helps us understand why they couldn't. It sort of tells us that this was a bit much for them, to go from slavery and segregation, and in an instant to create the democracy of the future."

One revelation for Anderson in his research was that school segregation in the South following Reconstruction was not a result of a lack of enforcement of the 14th Amendment or any other civil rights legislation. School segregation was not illegal because "it was never actually there" in the law, he said.

In leaving many matters unsettled, however, the Reconstruction Congress left an opportunity for the present day, Anderson said.

"I think all of us have been in the mode or mindset of thinking about what we can't do - kind of feeling like we're restrained by past legislation or constitutional provisions," he said. "In fact, what they may have left for us are unsettled questions that then provide us with a basis for being as creative and as thoughtful about it as we're capable of being."

Note that an article by Anderson about this research has since appeared in the June/July 2007 issue of the AERA journal Educational Researcher. (View or download the pdf.)